Russell-Newman Manufacturing Co., Inc.

Russell-Newman Manufacturing Company , Inc.- and Interna- tional Ladies' Garment Workers Union, AFL-CIO. , Case No. 16-CA-1456. January 3, 1962 DECISION AND ORDER On June 30, 1961, Trial Examiner Joni P. Von Rohr issued his In- termediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set, forth in the Intermediate Report attached hereto. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief, while the Charging Party filed excep- tions and, a letter in lieu of brief. The Respondent also filed a brief in.support of the Intermediate Report. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Leedom and Brown]., The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermedi- ate Report and the entire record in this case, including the exceptions and the briefs, and hereby adopts the findings, conclusions, and rec- ommendations of the Trial Examiner. We agree with the Trial Examiner that the General Counsel failed to prove by a preponderance of the evidence that the discharge of Wardlaw was discriminatorily motivated. Our dissenting colleague believes, however, that the evidence requires a finding that the dis- charge was unlawful. In our view he gives undue weight to certain parts of the record which, when presented in isolation, would seem to justify his proposed result. We are satisfied, however, that the rele- vant evidence viewed as a whole, including those parts relied upon by our colleague, quite clearly fails to support a violation. We are mindful of the fact that Wardlaw, who was an active union member and satisfactory. employee, was discharged for engaging in conduct of swearing ; that swearing was fairly common in the plant; and that such conduct had, on one occasion, been "punished" only by a change in work location. However, although not mentioned by the dissent, the record further shows that Martino, Respondent's vice president and general manager, who discharged Wardlaw, was in fact 135 NLRB No. 6. 1 634449-62-vol 135-2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD opposed to the use of improper language in the plant; had notified her supervisor that it would not,.be,permitted; and was unaware of its common occurrence. Further, there is no direct evidence demon- strating that Martino was motivated in his action against Wardlaw by reasons other than her use of offensive language. Significantly, at the time Wardlaw used offensive language toward Smith she also stated in effect that Smith should vote for the Union or "she would be sorry." Certainly, it would have been reasonable, as well as law- ful, for Respondent to discharge Wardlaw for making such a ,threat. However, the Respondent expressly disclaimed that the di's`charge was based at all upon the threat-a disclaimer obviously inconsistent with the dissent's view that Respondent sought to disguise an unlawful motivation with a lawful one. Wardlaw's union activity and Respondent's opposition to the Union are, of course, factors suggesting an improper motivation behind the discharge. But, any certainty in this regard becomes speculative in view of the facts that, (1) there is no evidence that the, Respondent y,engaged.in conduct proscribed by the Act in opposing the Union, and (2) three other employees on the union organizing committee with Wardlaw were neither discharged nor subjected to any discriminatory type conduct by Respondent. Furthermore, we cannot find here any reason for questioning the Respondent's motivation because of the severity of the penalty meted out to Wardlaw. The fact that in a single instance in the, past involv- ing a vaguely--similar situation the-offending employee suffered only an interplant transfer does not establish a company practice. Conse- quently, the failure to subject Wardlaw to a similar "punishment" cannot, in our view, be considered as showing that Wardlaw had been singled out for special treatment. Our conclusion here finds further support in the fact that the language used by Wardlaw might reason- ably have been considered by Respondent to be far more offensive than that involved in the previous incident, and thus, to have warranted more drastic disciplinary action. The company policy against swear- ing was breached. It was up to Respondent to determine the appro- priate disciplinary action and we cannot say that its choice of penalty discloses an attempt to seize upon Wardlaw's swearing as a means of getting rid of an active union adherent. This case, as the Trial Examiner observed, is one not wholly free from doubt, but in view of the various considerations outlined above, we conclude that the evidence is insufficient to support a finding that the asserted reason for Wardlaw's discharge was a pretext and that she was in fact discharged for her union activity. [The Board dismissed the complaint.] RUSSELL-NEWMAN MANUFACTURING COMPANY, INC. 3 MEMBER BROWN dissenting : I would reverse the Trial Examiner and find that Respondent dis- criminatorily discharged employee Wardlaw for her union activities in violation of Section 8 (a) (3) of the Act. In my opinion, Respondent's antiunion animus is demonstrated by the visits of its vice president and secretary-treasurer to the homes of all employees during which visits the employees were interrogated concerning their. union- affiliation and. whether they intended to vote for the Union in the forthcoming representation election. Indeed, Re- spondent's discriminatory motivation becomes clearly manifest to me when the following circumstances surrounding the discharge of Ward- law are considered : (1) she was an efficient worker with 13 years of satisfactory service; (2) she was the known leading union proponent (one of the four members of the union organizing committee) ; (3) the discharge purported to be for use of profane language to another em- ployee, Smith, despite the fact that Smith made no complaint to Re- spondent and such remarks were commonplace in the plant; (4) the severity of.the action taken by Respondent in Wardlaw's case particu- larly since such an extreme penalty had never before been meted out by Respondent for vulgar name calling; and (5) in a similar instance occurring earlier, the corrective measure taken by Respondent was to remove the employee who had been called the vulgar name to another part of the plant to protect her from the offending employee and since Smith terminated her employment the day of the -swearing incident, the same sort of measure could have been taken 'here' without` dis- charging Wardlaw. Upon the entire record in this case, and on the basis particularly of the factors to which I have referred, I would find that Respondent's asserted reason for discharging Wardlaw was a pretext and its real reason was her union activities. Accordingly, I would find that by this conduct the Respondent violated Section 8(a) (3) of the Act and would order Wardlaw's reinstatement with backpay. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon a charge, duly filed, the General Counsel for the National Labor Rela- tions Board, for the Regional Director of the Sixteenth Region (Fort Worth, Texas), issued a complaint against Russell-Newman Manufacturing Company, Inc., herein called the Respondent or the Company, alleging that the Respondent had engaged in and was engaging in certain unfair labor practices affecting com- merce within the meaning of Section 8(a)(1) and ( 3) and Section 2(6) and (7) of the National Labor Relations Act , as amended, 61 Stat. 136, herein called the Act. The Respondent's answer denies the allegations of unlawful conduct in the complaint. Pursuant to notice, a hearing was held in Denton, Texas, on April 11 and 12, 1961 , before the duly designated Trial Examiner. All parties were represented by counsel and were afforded opportunity to adduce evidence , to examine and cross-examine witnesses, and to file briefs. Briefs filed after the close of the hearing by the Respondent and the Charging Party have been carefully considered. 4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in this case , and upon my observation of the witnesses, I hereby make the following: FINDINGS OF FACT AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT The Respondent is a Texas corporation with its principal office and place of business located in Denton, Texas, where it is engaged in the manufacture and sale of ladies' and children's underwear and sleepwear. During the last 12 months the Respondent purchased and received goods and materials valued in excess of $50,000 from points and places outside the State of Texas During the same period it sold and shipped finished products valued in excess of $50,000 to points and places located outside the State of Texas. The Respondent admits, and I find, that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. H. THE LABOR ORGANIZATION INVOLVED International Ladies' Garment Workers Union, AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES - The sole'issue here involved is whether, as alleged in the complaint, the Respond- ent was motivated in discharging employee Gertrude Wardlaw because of her union activities in violation of Section 8(a)(1) and (3) of the' Act. - 'A Board-conducted representation election was held among the Respondent's production and maintenance employees on August 5, 1960, with the Union losing the election by a vote of '157 to 58. Gertrude Wardlaw, the alleged discriminatee herein, was one of the four members of the Union's organizing committee which led the Union's organizing campaign during the period preceding the election. Frank Martino, the Respondent's vice president and production manager and the one who was responsible for Wardlaw's discharge, conceded that prior to hei discharge he was aware that Wardlaw was one of the union leaders. Wardlaw, who had been an employee of the Respondent for approximately 13 years, worked as a machine operator on the second floor with 50 other female employees. It appears that she had been a satisfactory employee throughout her tenure of employment. She was discharged by the Respondent on August 8, a Monday. The incident which Respondent asserts as prompting her discharge occurred on the day of the election, which was a Friday. The facts concerning this incident are as follows: 1 During the 10-minute break period about midmorning, Wardlaw went to the Respondent's lunchroom where she met Joyce Smith, also an employee on the second floor. Joyce Smith, age 20, married, and with two children, had pre- viously signed a union card. However, the evidence reflects that Smith had an- nounced her intention to quit about the time of the election and it appears that the union leaders had some doubts as to how she would cast her vote in the election. When Wardlaw encountered Smith in the lunchroom she asked Smith whether she still intended to vote for the Union. Smith responded in the negative At this point there is a conflict in the testimony. Smith testified that upon indicating to Wardlaw that she would vote against the Union, Wardlaw thereupon said to her, "You little ass you, you had better or you will be sorry " 2 Wardlaw, on the other hand, testified that at this point she told Smith, "Oh. s , you are letting us down." Wardlaw testified further that at this point, "She [Smith] lust grinned and didn't say a word. Just walked back like it didn't bother her at all. Just went on over with some more girls and went to talking." I credit Smith's version of the conversation, as aforesaid.3 1 Unless noted to the contrary, the facts concerning this incident are not in dispute 2 Vulgarities deleted In this and In the following sentence In crediting Joyce Smith's version of this conversatl,in, I have not overlooked the fact that Smith's testimony pertaining to another matter was in conflict with her prior sworn statement (General Counsel's Exhibit No 5) The latter related to a conversation which she had with Martino in which Martino allegedly requested her not to quit her Job before the election, this because she allegedly had indicated to hill that she was opposed to the Union and would vote against it Howerei, I belieNe that Smith was tell- ing the truth in giving her account of the above conversation with W'ardlaw This is RUSSELL-NEWMAN MANUFACTURING COMPANY, INC. The above incident first reached the ears of Plant Manager Martino that same evening when he received a telephone call at his home from one Audrey Turner, an employee on the second floor, who called to inquire about the results of the election. During the course of this conversation Turner reported that there had been some trouble on the floor that day and she proceeded to relate the entire incident to Martino , including the language which Wardlaw had used in her con- versation with Smith 4 On the following day, a Saturday, Martino called Smith at the latter's home to inquire further about the matter. Mrs. Smith answered the telephone but in view of the embarrassing subject matter her husband was put on to provide the details . After confirming that his wife had reported the incident to him, Mr. Smith related what had occurred, including the language used by Wardlaw. Martino did nothing further over the weekend, but he took the matter up with Eunice Lovall , the floor supervisor of the second floor, as soon as he arrived at the plant on Monday morning. After some discussion , in which Lovall confirmed that she also had received reports of the Wardlaw-Smith incident on the preceding Friday,5 Martino directed Lovall to go check and find if there were any witnesses to the matter . Lovall did as instructed . Reporting back to Martino a short while later, Lovall said that although she found no witnesses who were present at the name-calling incident, her discussion with other employees indicated that it was common knowledge around the plant that the incident in fact did hap- pen in the manner related. Pursuant to Martino's request Lovall thereupon went to the second floor and brought Wardlaw to Martino's office.6 Martino proceeded to tell Wardlaw that he had learned of the name-calling incident with Smith, that he believed that the reports he received were true , and that she was being discharged for the use of vulgar and profane language. During the discharge conversation Wardlaw asked Martino to quote the exact language which she had used against Smith, but Martino would not do so. While not denying that she had used vulgar language, Wardlaw at this point merely told Martino , "Well, it's not true then, because I don't use that kind of language, anything that would be too bad for you to say." 7 Martino as a witness at the hearing gave as the reason for Wardlaw's discharge the same reason he gave to Wardlaw at the time of her discharge ; viz, the use of vulgar and profane language toward another employee. It will be recalled that in addition to the vulgarity which Wardlaw used against Smith, she also added, "You had better [vote for the union] or you will be sorry." Martino testified that the threat thus made by Wardlaw was not a factor in his determination that she be discharged. Additional Facts; Conclusions The General Counsel, in urging that Respondent 's reason for the discharge was pretextual, introduced testimony to show that it was not entirely uncommon for women employees to indulge in the use of various vulgarities , particularly that of the type which Wardlaw claimed to have used in her conversation with Joyce Smith . I have no doubt as to the veracity of such testimony . However, as the Respondent points out , the evidence shows that the profanity in kind was either used in a jocular vein or was of the "exclamation" type, i e., "a spontaneous type borne out by the fact three witnesses (Doris Spraybury, Ann Sheppard, and Eunice Lovall) credibly testified that they observed Smith was upset and that she was crying after her conversation with Wardlaw . I would regard it as extremely unlikely that Smith would have reacted in such a manner if the conversation was as innocuous as Wardlaw would have it Of equal significance is the fact that Spraybury, Shephard, and Lovall testified that they spoke to Smith when they saw that she was upset and that she repeated the language which Wardlaw had used Their testimony in reporting what Smith had told them, which I regard as a part of the res gestae, was corroborative of the version given by Smith. 4 Although Turner did not witness the incident , she spoke with Smith about it shortly after it happened . Turner thus repeated to Martino what she had learned from Smith. 5 Lovall testified that on Friday a floorgirl reported that there had been a dispute be- tween Wardlaw and Smith. According to Lovall , whose testimony I credit , she thereupon went back to check on the matter and found that Smith was in tears. Smith then related the entire incident, including the vulgarity which Wardlaw had used against her. s Lovall did not remain for the ensuing discussion 7 Wardlaw testified , and Martino denied, that during this conversation she told him (in reference to his stated reason for her discharge ), "That's not what you are letting me go for." Wardlaw testified that Martino made no response to the latter remark Assuming that the foregoing occurred as Wardlaw testified , I would find this to be of little pro- bative value in resolving the issue of her discharge 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of utterance upon the happening of an unexpected event which is not directed toward another person." But beyond this, it is also clear that in the instances where such language was used it was employed among the women themselves and did not come to the attention of Martino. There is in this regard, however, one incident which requires comment. Thus Irene Frazier, a former supervisory employee called by the General Counsel, testified that on one occasion while still a super- visor she separated two women employees by stationing them apart from each other because one referred to the other as a "damn b ch." Frazier testified further that she reported this incident to Martino about a day later, that she did not recall Martino making any response, and that no disciplinary action was taken against the employee who did the cursing. The employee involved was called as a Respondent witness and denied that she used the words "damn b ch," claim- ing that she used the word "hussy" instead. Martino testified that he did not learn of the incident until it was called to his attention by the field examiner who in- vestigated the instant case. Upon a consideration of all the evidence, and as- suming that the incident happened as testified to by Frazier, I am impelled to conclude that any such isolated incident does not establish, as the General Coun- sel apparently would have it, that Martino generally tolerated the use of profanity or vulgar language around the plant But perhaps even more to the point, and again assuming the incident occurred as Frazier related, it is clear that corrective measures had already been taken by the floor supervisor before she reported the matter to Martino. Martino testified that profane and vulgar language was not tolerated around the plant. Although there is no evidence that any other employees had been discharged or disciplined for the use of such language, there is credible evidence that this in fact was the rule, at least as far as Martino was concerned. Thus Irene Frazier testified that during supervisory meetings Martino "quite often" told the supervisors that they should report any such matters as profanity or theft and that "they expected us to keep up the good Christian atmosphere that we had, and they expected to keep it that way." Indeed, Frazier testified, "I heard him [Martino] say that if he heard them [vile words] himself he would fire them." Likewise, employee Doris Spraybury credibly testified that Irene Frazier, then a supervisor, told her when she was hired that employees were not allowed to use profane language; and Audrey Turner, a floorgirl, testified without contradiction that on several occasions during floor meet- ings Martino told the employees that this was "a Christian plant" and that the use of profane language in the plant was not allowed. At this point let us consider for the moment another aspect of the case, i e., the evidence proffered by the General Counsel purportedly to show that the underlying motivation or real basis for the discharge was Respondent's antiunion animus The sole conduct so relied upon consisted of visits by Martino and Donald Robinson, secretary-treasurer of the Respondent,8 to the homes of the employees during about the month before the election. Martino conceded that the purpose of these visits was to let the employees know that they felt the Company would be better off with- out a union The subject matter of these visits involved only explanations and com- parisons by Martino and Robinson of Respondent's wage scales, .its working facilities, working conditions, and the like There is no evidence whatsoever to indicate that any threats or promises of benefits were made to the employees during the course of these visits On the contrary. Martino testified without contradiction that they assured the employees "that the vote on election day would be a secret ballot and that no one would know how anybody voted, and it was their right and prerogative to cast their vote whichever way they saw fit." 9 Whether or not the visits of Martino and Robinson to the homes of employees in themselves constituted a violation of Section 8,(a) (1) of the Act need not be decided here, for they occurred more than 6 months prior to the filing of the charge and were not alleged in the complaint.10 While this evidence was admissible as background. I find that it falls short of the purpose for which it was offered At best it shows that the Respondent did not want the Union. There was nothing in Respondent's discussion with the employees that exceeded the permissible bounds of free speech Accordingly, it must be concluded that Respondent's conduct, as aforesaid, does not reveal such hostility to union organization or to the union activities engaged in by Wardlaw so as to establish 8 Robinson is also supervisor of the cutting room 8 One witness, employee Velma Brooks, testified that she recalled the owner of the plant, Mr. Newman, make a speech to the employees a few days before the election but that the only statement she recalled him making was "that he would like for all of us to vote " 10 It is noteworthy also that no objections to the August 5 election were filed on the basis of this or any other conduct. HOUSE MANUFACTURING CORPORATION 7 anything in the nature of a prima facie case that the discharge of Wardlaw was unlawfully motivated.il In sum, I find that the Respondent did show by substantial evidence that the assigned basis of Wardlaw's discharge did have a tangible basis and was not a mere pretext for discrimination . Indeed, the evidence upon which Martino based his conclusion that Wardlaw had in fact engaged in profanity was predicated upon much the same evidence in which the Trial Examiner reached the same conclusion. Although, as we have seen , there is evidence that other employees on occasions used profanity and were not discharged for it, the evidence does not establish that Martino was aware of such profanity or that he would tolerate it if it had come to his atten- tion. Quite to the contrary, the evidence affirmatively establishes that Martino was opposed to the use of profanity in the plant.12 To be sure, the case is not free from doubt. The Trial Examiner has particular misgivings when the degree of the penalty exacted is taken into account. Consider- ing the fact that Wardlaw was a 13-year Respondent employee , Respondent might well have taken some disciplinary action less severe than the extreme penalty of discharge. While the degree of the penalty may properly be considered as a part of the evidence as a whole, the rule generally applicable has been stated , in the language of the Eighth Circuit Court of Appeals , as follows: In considering the propriety of the discharges the question is not whether they were merited or unmerited , just or unjust, nor whether as disciplinary measures they were mild or drastic . These are matters to be determined by the management, the jurisdiction of the Board being limited to whether or not the discharges were for union activities or affiliations of the employees.13 Upon the record as a whole, and on all the evidence, I find and conclude that the General Counsel has failed to establish by a preponderance of the evidence that the discharge of Wardlaw was discriminatorily motivated . Accordingly, I shall recom- mend that the complaint be dismissed in its entirety. CONCLUSIONS OF LAW 1. The Respondent is and has been engaged in commerce at all times material herein within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent has not violated Section 8 ( a)(3) and ( 1) as alleged in the complaint. [Recommendations omitted from publication.] 11 See Alumatic Windows, Inc., 131 NLRB 1210 12 It might be added that this appeared to be in keeping with Martino 's character as this Trial Examiner observed it on the stand 13 N L R B v Montgomery Ward & Co , 157 F 2d 486 ( C A 8) ; see also Osceola County Co-Operative Creamery Association v N L R B , 251 F 2d 62 (C A 8 ), and cases cited. House Manufacturing Corporation and Lumber and Sawmill Workers Local Union 2882, United Brotherhood of Carpenters and Joiners of America, AFL-CIO. Case No. 2O-CA-2042. January 3, 1962 DECISION AND ORDER On October 6,1961, Trial Examiner James R. Hemingway issued his Intermediate Report on the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report 135 NLRB No. 3.